Opinion
CASE NO. 04-CV-1646-W (RBB).
September 28, 2005
ORDER ADOPTING REPORT AND RECOMMENDATION
On August 12, 2004 Petitioner Mark Anthony Flores ("Petitioner"), a state prisoner proceeding pro se, commenced this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his residential burglary and possession of stolen property convictions. On July 26, 2005 United States Magistrate Judge Ruben B. Brooks issued a Report and Recommendation ("Report") recommending that this Court deny the petition. On August 23, 2005 Petitioner timely submitted objections to the Report. The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1.(d.1). For the reasons outlined below, the Court ADOPTS the Report and DENIES the Petition. I. BACKGROUND
Petitioner was convicted of residential burglary and possession of stolen property in California Superior Court. Petitioner had prior convictions that made him eligible for sentencing under California's "Three Strikes" law. CAL. PENAL CODE § 4667(b)-(I); ( Lodgment No. 1, Clerk's Tr. at 1-3). The trial court sentenced Petitioner to thirty-one years to life. ( Lodgment No. 2, Clerk's T. Vol. 6, at 1-3).
Petitioner simultaneously filed a direct appeal of his conviction and a habeas petition with the California Court of Appeal, Fourth Appellate District, Division One. ( Lodgment No. 3, Appellant's Opening Brief). In his habeas petition, Petitioner asserted that habeas relief was warranted because the trial court erred by denying his motion for a new trial without first investigating his allegations of ineffective assistance of counsel and that his trial counsel was ineffective. ( Lodgment No. 3, Appellant's Opening Brief at 6-20). On October 28, 2002 the state appellate court affirmed Petitioner's conviction and denied his habeas petition. (Lodgment No. 5, People v. Flores, No D037628, slip op. (Cal.Ct.App. Oct 28, 2002)). Petitioner did not seek immediate review in the California Supreme Court but on October 14, 2003 Petitioner filed a separate petition for a writ of habeas corpus in the California Supreme Court, which that court denied shortly thereafter. Petitioner now requests federal habeas relief based on his ineffective assistance of counsel claims.
II. LEGAL STANDARD
The duties of a district court in connection with a magistrate judge's report and recommendation are set forth in Rule 72(b) of the Federal Rules Of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C); see also United States v. Raddatz, 447 U.S. 667, 676 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). When a petitioner challenges a state court's ruling on a Constitutional issue, federal courts conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of clearly established Supreme Court Law. See Delgado v. Lewis, 223 F. 3d 976, 982 (9th Cir. 2000).
III. ANALYSIS
Having read and considered the underlying Petition, the Report and Petitioner's objection thereto, the Court concludes the Report presents a well-reasoned analysis of the issues. For the following reasons, the Court finds the Report correctly concluded that Petitioner is not entitled to federal habeas relief.
A. PETITIONER WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL
Petitioner contends that his trial counsel was ineffective for failing to object to the admission into evidence of a fingerprint card that contained notations regarding Petitioner's criminal record. ( Pet. Obj. at 3). The Report thoroughly analyzed this issue and concluded that Petitioner's ineffective assistance of counsel claim is without merit because counsel's alleged error did not prejudice Petitioner because overwhelming evidence supported the verdict. ( Pet. Obj. at 2). Petitioner objects to the Report's conclusion and contends that he was prejudiced by his attorney's alleged error because the jury could have inferred from the fingerprint card that he had previously been incarcerated. The Court disagrees.
The fingerprint card contained Petitioner's fingerprints as well as notations regarding the nature and date of his prior arrest and incarceration. ( Report at 8).
A petitioner who complains of ineffective assistance of counsel must show that (1) counsel's representation fell below an objective standard of reasonableness and (2) counsel's errors prejudiced the trial result. Strickland v. Washington, 466 U.S. 668, 687-88, 691 (1984). The Strickland court defined prejudice as: "a reasonable probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different." Id. at 694 (emphasis supplied). The Court need not address both the deficiency and prejudice prongs if the Petitioner fails to make a sufficient showing on either one. Id. at 697. Assuming, arguendo, that Petitioner's counsel's actions were objectively unreasonable, the Report correctly concludes that Petitioner cannot establish the prejudice necessary to support his claim.
The state court concluded that Petitioner "makes a colorable claim that counsel's failure to object to the admission of the fingerprint card was unreasonable." ( Lodgment No. 5, People v. Flores, No. D037628). The Report does not contradict this assertion.
Any prejudice Petitioner may have suffered due to the admission of the fingerprint card is outweighed by the substantial amount of incriminating evidence against Petitioner. Law enforcement officers found Petitioner's fingerprint inside a glove discovered at the scene of the burglary. ( Lodgment No. 2, Rep's Tr. At 200, 246-47, 283-88). Petitioner's telephone number was saved on a pager that was left at the scene of the crime. ( Investigator's Report at 3). Authorities recovered the victim's stolen property at Petitioner's residence. ( Lodgment No. 2, Rep's Tr. At 200, 246-47, 283-88). As the Report correctly notes, Petitioner offered no credible explanation for these events at his trial. ( Report at 12).
In light of this overwhelming evidence, this Court concludes that Petitioner has failed to carry his burden underStrickland. There is no reasonable probability that Petitioner would have received a different verdict had the fingerprint card not been admitted. Thus, Petitioner failsStrickland's "prejudice" standard. The Report correctly concludes that habeas relief is not warranted for this claim.
B. PETITIONER'S DUE PROCESS CLAIMS DO NOT WARRANT HABEAS RELIEF
Petitioner contends that the state deprived him of his right to a fair trial when it denied his motion for a new trial and objects to the Report's contrary conclusion. ( Pet. at 7; Report at 3). Petitioner based his new trial motion on two grounds: (1) ineffective assistance of counsel and (2) the erroneous admission of the fingerprint card containing cryptic references to Petitioner's prior prison time. ( Lodgment No. 2, Rep.'s Tr. Vol. 6, at 5). The Report concluded that neither ground warranted a new trial.
Even assuming that denial of Petitioner's new trial motion insofar as it was based on ineffective assistance of counsel amounted to Constitutional error, Petitioner cannot show that error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 627 (1993). Given the overwhelming evidence against Petitioner, as discussed above, Petitioner has not established that his counsel's failure to object to the fingerprint card's admission had any substantial impact on his trial. Thus, the Court concurs with the Report's conclusion that the state court's denial of Petitioner's claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. See Williams, 529 U.S. at 412-13.
Turning to Petitioner's second ground for a new trial, Petitioner objects to the Report's conclusion that the admission of the fingerprint card did not taint the trial proceedings sufficiently so as to violate his right of due process. ( Pet. at 3). Petitioner asserts that admission of the fingerprint card did taint the trial — as evidenced by a juror's post-trial inquiry regarding Petitioner's criminal record. The Court disagrees.
A state court's evidentiary ruling is grounds for federal habeas relief only if it renders the state proceedings so fundamentally unfair as to violate due process. See Spivey v. Rocha, 194 F.3d 971, 977-78 (9th Cir. 1999) (citing Henry v. Kernan, 177 F. 3d 1152, 1159 (9th Cir. 1999). An error violates due process if the error had a substantial and injurious effect on the trial's outcome. Thomas v. Hubbard, 273 F.3d 1164, 1179 (9th Cir. 2001). As discussed above, Petitioner has failed to establish that admission of the fingerprint card substantially affected the trial's result in light of the overwhelming evidence supporting Petitioner's conviction. See Brecht, 507 U.S. at 627. Thus, the Report correctly concluded that Petitioner is not entitled to federal habeas relief on this claim. C. PETITIONER'S CONSTITUTIONAL RIGHTS WERE NOT VIOLATED BECAUSE HE RECEIVED THE FUNCTIONAL EQUIVALENT OF A TRIAL COURT HEARING WITH CONFLICT-FREE COUNSEL ON HIS MOTION FOR A NEW TRIAL
Finally, Petitioner asserts that because his counsel became conflicted when Petitioner moved for a new trial on the basis of ineffective assistance of counsel, his right to competent, conflict-free counsel was violated. ( Pet. at 6). Petitioner argues that because of this violation, he is entitled to a new hearing and objects to the Report's conclusion that he has already been granted the equivalent of a new hearing. ( Pet. at 3). Petitioner suggests that the appellate hearing denying his motion for a new trial is somehow invalid and he is entitled to a new hearing before a trial court. Petitioner is wrong.
Petitioner cites Supreme Court and Ninth Circuit authority in asserting that prejudice is presumed and that reversal is automatic for Sixth Amendment violations involving conflicted counsel in ineffective assistance of counsel claims. ( Pet. Obj. At 6); see Manhalt v. Reed, 847 F.2d 576, 580 (9th Cir. 1980) (citing Cuyler v. Sullivan, 446 U.S. 335, 348-350 1980);U.S. v. Crespo de Llano, 838 F.2d 1006, 1002 (citing Holloway v. Arkansas, 435 U.S. 475, 482 (1978)). These cases are inapposite in that they deal with conflicted counsel at trial who are engaged in successive or simultaneous representations that give rise to their conflict. While these cases do address per se reversal for ineffective assistance of counsel claims involving conflicted attorneys, reversal is not automatic and the prejudice presumption is rebuttable. In the instant case, Petitioner's counsel's conflict arose after the trial — during the hearing on Petitioner's new trial motion. While this Court agrees with the Report's finding that Petitioner's counsel was conflicted during the hearing on his post-trial motion for a new trial, the cited authority does not support Petitioner's claim that he is entitled to automatic reversal or even a presumption of prejudice due to his counsel's conflict.
For the purposes of Petitioner's ineffective assistance of counsel claim based on his attorney's conflict, the appellate court was fully empowered to consider this claim on appeal. Upon appellate review of this claim, Petitioner received new, conflict-free counsel. ( Report at 18). The appellate court concluded that although Petitioner's counsel's performance during his post-trial motion may have been objectively unreasonable, Petitioner was not prejudiced because of the substantial incriminating evidence against him. During their review, the appellate panel considered the same issue using the same standard of review as the trial court would have used. ( Id. ) Since appellate review of Petitioner's claim amounted to the functional equivalent of a trial court hearing on the same issue, Petitioner's request for habeas relief to pursue his new trial motion at the trial court level with conflict-free counsel is meritless. As a result, Petitioner is not entitled to habeas relief on this claim.
IV. CONCLUSION AND ORDER
In light of the foregoing, the Court ADOPTS the reasoning and findings contained in the Report. For the reasons stated in the Report, which is incorporated herein by reference, the Court DENIES Petitioner's section 2254 writ of habeas corpus petition. The Clerk of Court shall close the district court case file.
IT IS SO ORDERED.